Conservation Law Foundation v. ExxonMobil Corp.

After a court conference on October 26, the court ordered that all discovery be stayed until further order of the court. The conference was held to discuss issues including whether the case should be referred to mediation as requested by CLF and whether the court should order briefing on whether the case was moot, as requested by Exxon.

In Conservation Law Foundation’s (CLF’s) lawsuit alleging a failure to prepare a petroleum bulk storage terminal in Everett, Massachusetts, for the impacts of climate change, the defendant, ExxonMobil Corporation (Exxon), on September 14, 2022 notified the federal district court for the District of Massachusetts that a Sale and Purchase Agreement for the Everett Terminal had been terminated. Exxon said that it continued to believe that claims in the suit were moot because Exxon had months earlier stopped using the property for storage and sale of petroleum products and all remaining liquids had been removed.

On December 22, 2021, the federal district court for the District of Massachusetts issued an order concerning the next steps for Conservation Law Foundation’s (CLF’s) lawsuit alleging that ExxonMobil Corporation (Exxon) failed to prepare its Everett, Massachusetts terminal for the impacts of climate change. The First Circuit sent the case back to the district court in July 2021, finding that the district court erred in staying the case. In its December 2021 order, the district court concluded that a 2021 Supreme Court decision did not alter the standard the district court had used in denying a motion to dismiss claims for prospective injunctive relief for lack of standing. The district court also found that both the question of standing and the question of whether Exxon’s 2021 revisions to the Everett terminal’s stormwater pollution prevention plan (SWPPP) mooted CLF’s claims would benefit from factual development in discovery, as would certain other issues such as the impact of the U.S. Environmental Protection Agency’s 2021 issuance of a Multi-Sector General Permit. The court also did not require CLF to file a new complaint in light of the SWPPP revisions but warned that CLF could risk denial of a future motion to amend the complaint. The court also declined to bifurcate discovery concerning remedies and liability. The court directed the parties to propose a “more realistic” schedule for fact and expert discovery than the five months CLF proposed for fact discovery.

In Conservation Law Foundation’s (CLF’s) citizen suit alleging that Exxon defendants violated the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) by failing to account for climate change impacts at a petroleum terminal in Massachusetts, the parties filed responses to questions posed by the federal district court for the District of Massachusetts about various developments that occurred while CLF’s successful appeal of the district court’s stay order was pending. Exxon argued that recent Supreme Court decisions demonstrated that CLF lacked standing for its Stormwater Pollution Prevention Plan (SWPPP) and RCRA claims because alleged risk from flooding was too speculative. Exxon also contended that its revision of the SWPPP for the terminal rendered the SWPPP claims moot and that the SWPPP claims failed on the merits because in issuing the 2021 Multi-Sector General Permit (MSGP) EPA had rejected CLF’s contention that the 2015 MSGP required consideration of flood risks due to heavy precipitation and flooding.

CLF argued that while the 2021 MSGP might be “some evidence” to interpret the terminal’s permit, the final 2021 MSGP in fact supported CLF’s interpretation of the terminal’s permit. CLF also argued that changes to the SWPPP were not material to CLF’s claims and that Exxon’s arguments regarding standing were “simply the latest in their continued effort to relitigate issues that the Court has already decided.” The parties also weighed in on the need for extrinsic evidence and their plans for discovery.

In September 2021, Exxon informed the court that EPA had advised that it no longer expected to issue a draft permit in September or October. Exxon also said it had begun to market the terminal for sale.

On April 17, 2020, Conservation Law Foundation (CLF) filed notice that it was appealing the decision of the federal district court for the District of Massachusetts that stayed CLF’s climate adaptation lawsuit against ExxonMobil Corporation. The district court concluded that it should defer to the primary jurisdiction of EPA regarding the steps Exxon should take to protect its petroleum storage and distribution terminal from flooding and severe storms caused by climate change.

Citing the doctrine of primary jurisdiction, the federal district court for the District of Massachusetts stayed a citizen suit asserting that ExxonMobil Corporation (Exxon) and related defendants violated the National Pollutant Discharge Elimination System (NPDES) permit for their 110-acre petroleum storage and distribution terminal in Everett, Massachusetts, including by failing to consider flooding and severe storms caused by climate change in their maintenance of the terminal. The plaintiff also asserted that the permit violations posed an imminent and substantial endangerment to human health and the environment in violation of the Resource Conservation and Recovery Act. The terminal has a NPDES permit issued by EPA that expired in 2014 but which EPA has administratively continued so that its terms remain in effect; EPA regional counsel informed the court that the agency is working in good faith to renew the permit by 2022. The court found that the precedent against applying primary jurisdiction in citizen suits was “not overwhelming,” and that, in any event, this case was not a “typical” citizen suit, both because it involved “ambiguous, narrative permit conditions” and would require the court to determine to what extent weather patterns were changing in the Boston area, an inquiry implicating scientific and policy issues. Although the court acknowledged that the doctrine of primary jurisdiction should be applied “sparingly” in citizen suits, it concluded that this case “involves a rare set of circumstances in which deferring to the primary jurisdiction of the EPA is justified and appropriate.” Considering the factors for applying primary jurisdiction, the court first said that “determining permit conditions” was “at the heart of the EPA’s authority” under the Clean Water Act. Second, the court noted again that the question of how Exxon should consider “predictable weather patterns” raised “scientific and policy issues that the EPA is better equipped to decide than the court.” Third, the court noted that EPA’s issuance of the renewed permit would “generate a fuller administrative record” to which the court could refer to interpret the permit and could moot the plaintiff’s request for injunctive relief. Fourth, the court said allowing EPA the opportunity to issue the permit would further regulatory uniformity. The court also concluded that the potential for delay did not outweigh other factors; the court noted that resolving the case on the merits could require as much time as EPA had estimated for the permit’s renewal. The court therefore stayed the case, directing the parties to confer within 30 days of issuance of a new permit regarding whether the stay should be lifted and, if so, how the case should proceed. The court further directed that if a new permit was not issued by November 1, 2021, the parties should confer and report to the court on the status of the permitting process and on whether the stay should be lifted.

A federal court in Massachusetts declined to dismiss claims asserted by Conservation Law Foundation (CLF) against ExxonMobil Corporation (Exxon) for allegedly violating a marine terminal’s Clean Water Act permit by failing to take into account the impacts of climate change. The court—which issued its decision orally—concluded that CLF’s amended complaint included new allegations of imminent harm sufficient to allege standing and that the complaint alleged sufficient facts to state claims that Exxon violated the Clean Water Act permit by failing to consider weather events induced by climate change in its Storm Water Pollution Prevention Plan (SWPPP). Regarding standing, the court pointed to the complaint’s allegations of severe weather events induced by climate change that were already occurring or would occur in the near future in Massachusetts. In considering whether CLF had stated a claim, the court held that the Clean Water Act permit required consideration of foreseeable severe weather events, including climate change-induced weather events, because the permit required Exxon both to develop a SWPPP using “good engineering practices” and also to proactively address potential discharges of pollutants. The court found that U.S. Environmental Protection Agency (EPA) guidance and allegations of engineers’ practices in the field were sufficient to establish a claim that “good engineering practices” should include consideration of foreseeable severe weather events. The court was not persuaded by Exxon’s arguments that the permit shield doctrine barred CLF’s claims because EPA was aware of climate change when it issued the permit for the terminal; the court also said CLF allegations were sufficient to allege that Exxon had not taken foreseeable severe weather events into account in the SWPPP and in designing the terminal. The court also allowed CLF’s Resource Conservation and Recovery Act claim to proceed, except to the extent that it was based on discharges from point sources covered by the permit, because CLF plausibly alleged an imminent threat of harm. In addition, the court dismissed two claims and allowed two non-climate change claims to proceed, as it had previously indicated it would do, and also dismissed a third claim that it deemed to be subject to the permit shield doctrine. The court set a schedule for Exxon to file a motion for a stay under the doctrine of primary jurisdiction, with oral argument to be held on May 14. The court directed Exxon to issue any subpoena for EPA testimony by April 5 to allow EPA an opportunity to move to quash the subpoena.

The defendants reported to the court that the U.S. Environmental Protection Agency (EPA) intended to release a draft National Pollutant Discharge Elimination System permit for public comment "in the coming years." The defendants said they did not plan to sue EPA for failing to act because doing so would be futile. The defendants instead urged the court to defer to EPA pursuant to the primary jurisdiction doctrine. Alternatively, the defendants contended that EPA should participate as a witness in this lawsuit.

The plaintiff reported that the U.S. Environmental Protection Agency (EPA) planned to take action on the defendant's permit application "in due course," but that it would take years fro EPA to take final action. The plaintiff said it believed suing EPA for failure to act would be futile, and also said that a mandamus petition in the First Circuit would be "ill-suited to the circumstances presented here." The plaintiff told the court that it believed the existing permit could protect human health and the environment, if enforced.

The federal district court for the District of Massachusetts ordered plaintiff Conservation Law Foundation and defendants ExxonMobil Corporation and two affiliates (Exxon) to discuss with the U.S. Environmental Protection Agency (EPA) the status of Exxon's application to renew the National Pollutant Discharge Elimination System permit for the terminal, and to report to the court on "whether and when" EPA expected to act on the application. The court also directed the parties to inform it of whether they intended to file suit against EPA for failure to act.

Conservation Law Foundation (CLF) opposed the motion to dismiss, arguing that its amended complaint focused “only on the past, present, and near-term injuries associated with Exxon’s violations.” CLF characterized the issue before the court as “whether the climatic changes outlined by CLF were and are occurring during the relevant time frame and whether they should have been considered and addressed by Exxon.”

Exxon Mobil Corporation and related entities (Exxon) moved to dismiss Conservation Law Foundation’s (CLF’s) amended complaint alleging that Exxon violated the Clean Water Act and Resource Conservation and Recovery Act by failing to prepare a marine distribution terminal in Massachusetts for severe weather and other climatic events. CLF alleged that Exxon had failed to design the terminal or its waste water treatment system “to address precipitation and/or flooding, which is exacerbated by storms and storm surges, sea level rise, and increasing sea surface temperatures.” CLF alleged that climate change was increasing the frequency and severity of events such as extreme rainfall. In support of motion to dismiss, Exxon argued that CLF had defied the court’s earlier ruling that CLF lacked standing for injuries that would occur “in the far future” due to climate change impacts. Exxon asserted that CLF continued “to assert climate change claims premised on distant and speculative impacts” and had failed to identify violations of the facility’s National Pollutant Discharge Elimination System permit. Exxon argued that the Clean Water Act’s permit shield and the collateral attack doctrine barred CLF’s claims.

The parties subsequently submitted a joint motion proposing a schedule under which the plaintiff will file an amended complaint in accordance with the court’s order by October 20, 2017, after which the parties will negotiate for one month to resolve or narrow remaining disputed issues.

The federal district court for the District of Massachusetts granted in part and denied in part ExxonMobil Corporation’s (Exxon’s) motion to dismiss a Clean Water Act citizen suit alleging Exxon failed to prepare an oil terminal for severe storms and climate change. The court found that the plaintiff had adequately alleged standing for claims that there was a substantial risk that severe weather events such as storm surges, heavy rains, or flooding would cause the terminal to discharge pollutants in the near future and while the facility’s current permit was in effect. The court also found, however, that the plaintiffs did not have standing “for injuries that allegedly will result from rises in sea level, or increases in the severity of storms and flooding, that will occur in the far future, such as in 2050 or 2100.”

In response to ExxonMobil’s motion to dismiss, Conservation Law Foundation (CLF) asserted that ExxonMobil’s failures to properly disclose and manage risks of discharges caused by climate change resulted in “real and imminent, not exaggerated or uncertain” injuries. CLF contended that it had standing to bring its claims and that it had adequately alleged claims under RCRA and the Clean Water Act.

Exxon Mobil Corporation and two related entities (ExxonMobil) asked the federal district court for the District of Massachusetts to dismiss a citizen suit brought pursuant to the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) in connection with ExxonMobil’s operation of a marine distribution terminal in Massachusetts. ExxonMobil argued that the plaintiff, Conservation Law Foundation (CLF), lacked standing because the climate change impacts alleged by CLF were speculative and too far in the future to satisfy standing requirements. For the same reason, ExxonMobil said that CLF’s allegations failed to allege the “imminent and substantial endangerment” necessary to state a RCRA claim. ExxonMobil also argued that CLF’s climate change-related Clean Water Act claims were jurisdictionally and facially defective because EPA had clearly taken the position that remote and speculative climate change impacts did not need to be considered with respect to NPDES permits, Stormwater Pollution Prevention Plans, and Spill Prevention, Control and Countermeasure (SPCC) plans. In addition, ExxonMobil contended that CLF did not state valid non-climate change Clean Water Act claims. ExxonMobil also said that the court did not have subject matter jurisdiction to consider the claim that the SPCC plans for the terminal should consider climate change because the Clean Water Act’s citizen suit provision did not encompass such a claim.

Conservation Law Foundation (CLF) filed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act against ExxonMobil Corporation and two related companies (ExxonMobil) alleging that the defendants had failed to take climate change impacts into account in connection with their operation of the Everett Terminal, a marine distribution terminal in Massachusetts. The complaint, filed four months after CLF submitted a notice of intent to ExxonMobil, alleged that the terminal was vulnerable to sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surge, and that ExxonMobil had not taken action to address these vulnerabilities despite having “long been well aware of” climate change impacts and risks. In the RCRA cause of action, the complaint said that the threats of storm surge and sea level rise were imminent and that the failure to adapt the Everett Terminal would result in the release of hazardous and solid wastes into the environment and surrounding residential communities. In the Clean Water Act causes of action, the complaint asserted that the facility was violating its National Pollutant Discharge Elimination System (NPDES) permit because discharges from the facility were occurring more frequently than allowed under the permit and numeric effluent limitations were exceeded. In addition, the complaint alleged that discharges from the facility violated state water quality standards and that the facility’s stormwater pollution prevention plan and spill prevention, control and countermeasures plan were inadequate because they failed to address climate change impacts.

Conservation Law Foundation (CLF) sent a letter to ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil Pipeline Company notifying them that it intended to file a lawsuit alleging violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act in connection with the Everett Terminal, a marine distribution terminal in Massachusetts. With respect to RCRA, CLF asserted that ExxonMobil’s past or present handling, storage, treatment, transportation, or disposal of hazardous and solid waste might present an imminent or substantial endangerment to health or the environment. CLF contended that ExxonMobil was aware that a significant rise in sea level would put the Everett Terminal under water but that the companies had not taken any action to protect the public or the environment from this risk. CLF also said that failures to disclose information regarding climate change risks could also expose ExxonMobil to liability under other theories. With respect to the Clean Water Act, CLF said that ExxonMobil had not disclosed climate change information in its applications for coverage under National Pollutant Discharge Elimination System (NPDES) permits and had failed to address sea level rise, increased precipitation, and increased magnitude and frequency of storm events and storm surges in its Stormwater Pollution Prevention Plan.